IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220006854 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions for upgrade of his under other than honorable conditions (UOTHC) discharge. Additionally, he requests a personal appearance. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim), dated 8 August 2017 * previously considered Character Reference letter, dated 17 July 2017 * VA Forms 21-0781, as reference letters dated 1 and 8 August 2017 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC-79- 00328 on 28 February 1979 and AR20180003461 on 16 July 2020. 2. As a new argument, the applicant states he was stationed at Fort Benning, GA for airborne training in April 1974. During the third week of training, he completed three drops from a 200-foot tower. On the third drop his parachute did not completely open because of a gust of wind. He landed on his right shoulder, arm, neck, and head. The trainer asked him if he was ok and replied yes; despite being in pain. The next three days he was in much pain as he completed five jumps to earn his wings. The pain remains with him through today. The applicant mentions his court-martial was due to entrapment and mass incarceration to limit the number of blacks and minorities in the military. He also noted his request is related to post-traumatic stress disorder (PTSD) but did not provide supporting documentation of a diagnosis. 3. The applicant's service record shows: a. On 21 December 1973, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of basic training, he was assigned to Fort Benning, GA, to complete the basic airborne course. Upon completion, he was assigned to Fort Lee, VA, on 2 April 1974 to complete part of his advance individual training (AIT). b. On 10 April 1974, while still in AIT at Fort Lee, VA, the applicant accepted non- judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being derelict in his duties by failing to stay awake on guard duty on or about 10 April 1974. c. On or about 16 August 1974, he was reassigned to Fort Bragg, NC, where he competed AIT, was awarded military occupational specialty 76Y (Armorer/Unit Supply Specialist) and was permanently assigned as his first duty station. d. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: * 2 January 1975, for dereliction of duty, by willfully failing to return a vehicle to the motor pool, and negligently damaging the government vehicle by striking a parked car, on or about 26 December 1974; his punishment included seven days correctional custody and reduction to E-2 * 2 May 1975, for failing to report to his appointed place of duty at the time prescribed, on or about 28 April 1975; his punishment included extra duty for seven days * 12 March 1976, for stealing government property (a meal), on or about 8 March 1976; his punishment included a reduction to E-3, 14 days extra duty and restriction; his appeal was denied on 17 March 1976 e. On 29 September 1976, before a general court-martial, at Fort Bragg, NC, the applicant was found guilty of one specification of possessing marijuana, and one specification of wrongfully transferring marijuana, on or about 24 June 1976. His punishment included confinement at hard labor for five months, forfeiture of $200 per month for five months, reduction to the grade of E-1, and discharge from the service with a bad conduct discharge (BCD). On 13 December 1976, his sentence was approved, and the record of trial was forwarded for appellate review. f. On 28 January 1977, General Court-Martial Order (GCMO) Number 156, issued by the Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, KS, ordered the applicant returned to duty pending completion of appellate review. g. On 31 October 1977, the U.S. Army Court of Military Review affirmed the findings and his sentence. h. GCMO Number 1090, issued by Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, KS on 4 November 1977, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. i. On 6 January 1978, the applicant underwent a separation examination. His Standard Form 88 (Report of Medical Examination) shows he had a left hernia repair and the examining physician found him qualified for separation. j. On 7 February 1978, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2. His DD Form 214 (Report of Separation from Active Duty) shows his service was characterized as UOTHC. He was credited with completing 3 years, 9 months, and 16 days of net active service. He had 83 days of lost time from 29 September 1976 to 20 December 1976, 38 days lost subsequent to normal expiration of term of service from 21 December 1976 through 27 January 1977, and 344 days excess leave from 28 January 1977 thru 6 February 1978. He was awarded or authorized the National Defense Service Medal, Meritorious Unit Citation, and a Parachute Badge. 4. The applicant applied to the ABCMR for an upgrade of his discharge, on the following occasions. a. On 28 February 1979, the Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. b. On 15 December 1983, 20 December 1985, 25 June 2009, 22 September 2010, and 25 January 2013, the applicant applied for reconsideration. These requests were closed and returned without action because he did not provide any new evidence or a new argument. c. On 16 July 2020, the Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. During the processing of this case the Army Review Board Agency (ARBA) Medical Advisor reviewed supporting documents and the applicant’s medical records, and made the following findings and recommendations: (1) While liberal consideration was applied, the applicant does not have a service connection for PTSD. The submitted note reports trauma relates to an injury there is no substantiation for and that the applicant did not report or endorse on various physical forms after 1974. Moreover, the handwritten note does not indicate the provider’s practice, specialty, or other elements needed to assess the assertion. Accordingly, there is no medical mitigation. (2) Due to the period of service, active - duty electronic medical records are void. Hard copy medical records are void of a jump accident and the applicant did not indicate a history of a jump accident in any of his physicals after 1974. (3) The applicant is not service connected and VA records are void. The applicant submitted a sheet completed by a provider asserting they are a M.D. The provider listed a diagnosis of PTSD which they believed was related to service; a jump in April 1974. The hand completed sheet does not have a letterhead or otherwise indicate the provider’s practice or specialty. 5. The applicant provides a statement as listed above, a previously considered character reference statement and two VA Forms 21-0781, as character reference statements attesting to his passion for helping cancer patients and being an excellent co-worker, his reputation caring for his community, friendliness, and generosity for opening his home to a friend who lost his job [provided in entirety for review]. 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 7. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions for an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD, which mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 21 December 1973; 2) Upon completion of basic training, he was assigned to the basic airborne course; 3) On 29 September 1976, the applicant was found guilty of possessing and transferring marijuana; 4) On 07 February 1978, the applicant was discharged. His service was characterized as UOTHC; 5) The applicant applied to the ABCMR for an upgrade of his discharge on 28 February 1979. The Board determined the applicant was properly discharged and denied his request; 6) The applicant reapplied five additional times between December 1983- January 2013 for reconsideration. These requests were returned without action, because he did not provide new evidence or argument; 7) On 16 July 2020, the Board again determined he was properly discharged and denied his request. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No new additional hardcopy civilian treatment records were provided for review. d. The applicant asserts he was experiencing resultant PTSD from attending the airborne course. A review of JLV is void of medical records. The applicant did not provide any documentation or discuss any diagnosis or treatment of PTSD from a civilian provider or facility. The applicant has no service-connected disabilities. e. Based on the available information, it is the opinion of the Agency BH Advisor there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD which contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends his PTSD occurred while on active service. C. Does the condition experience actually excuse or mitigate the discharge? No. There is no evidence supporting the applicant was experiencing PTSD, while on active service. The applicant did not provide any new civilian behavioral health documentation, and JLV is void of any history of VA medical treatment. In addition, the applicant was found guilty of possessing and transferring marijuana. There is no nexus between PTSD and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends PTSD resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military record and medical review, the Board concurred with the advising official finding no nexus between PTSD and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. The applicant provided insufficient evidence of post-service achievements or character letters of support that showed honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based on a preponderance of evidence, the Board determined there is insufficient evidence to amend the previous Boards’ decision. Therefore, relief was denied. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20180003461 on 16 July 2020. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as UOTHC. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006854 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1